- A. Overview
- B. Definition of modified material
- C. Direct modifications
- D. Derivative and transformative works
- E. Collections and combinations of works
- F. No application to purely formal and technical changes
- G. No application to independent new creations and when using public domain elements
- H. No application to adaptations permitted by law – through limitation provisions
A. Overview
1 Section 1.a defines the term "adapted material" (hereinafter also referred to simply as "adaptation" or "modification"). The definition is significant for the scope of the licence with regard to the creation and sharing of adaptations and modifications of the licensed work. CC-licensed material may, in principle, be modified in accordance with Section 2.a.1.B. All licence versions except ND licences also permit the publication and distribution/sharing of modified versions (see Section 1.i Rn. 67 below).
2 The CC licences contain special provisions for adaptations and their distribution: In the case of ND licences, the distribution of adaptations is excluded from the licence grant. The other CC licence versions allow this, but stipulate that adaptations must be indicated (see Section 3.a.1.C). Both the ND restriction and the obligation to indicate modifications only apply if the respective modification falls under the definition of modified material and the adaptation is republished or shared.
3 The definition
4 Not every change to the work constitutes "modified material". Purely technical changes are not covered, nor are those whose creation and/or distribution does not require consent under the applicable copyright law. This applies in particular to the use of adaptations that are subject to a statutory limitation provision (see section 2.a.2). For example, Section 51a UrhG permits the adaptation of protected material belonging to third parties for the purpose of "pastiche" and the publication of the pastiche. Accordingly, this does not require the granting of rights of use by the CC licence, so that its requirements and restrictions (in the case of ND licences) do not apply (see Section 8.a and Section 2.a.2 margin note 48).
B. Definition of modified material
5 The term "modified material" is to be understood in the same broad sense as the terms "adaptations" and "reworkings" in Sections 3 and 23 of the UrhG. In principle, the author alone can decide in what form and version their work can be perceived. Changes are therefore generally subject to approval
6 "Modified material" refers, on the one hand, to directly altered versions of the licensed work (abridgements, extensions, etc.). On the other hand, it may also include works based on the original work or combinations of works, even if the licensed material is used unchanged therein. Whether a modification within the meaning of the licence exists usually depends on the circumstances of the individual case .
C. Direct modifications
7 Modified material is created when a work is directly altered. In the case of literary works, this applies, for example, to updates, linguistic rewordings, abridgements or summaries. In the case of translations, too, the work is modified/edited by being reproduced in another language.
8 Direct modifications of musical works include, for example, variations or instrumentations of vocal music, remakes and remixes in a different musical genre, mashups or new arrangements.
9 Modifications of photographs and films arise, for example, when they are cropped, re-edited or altered.
D. Derivative and transformative works
10 The transformation of works into another type of work also generally falls under the term "modified material".
E. Collections and combinations of works
11 Uses in which the original work or works are combined with other material in their entirety and without modification are particularly difficult to assess. The only case that is clearly regulated in section 1.a is that of music being used to accompany films and videos. This constitutes a modification within the meaning of the licence.
12 When making the distinction, a conceptual distinction can be made between collections and combinations of works.
13 The situation is different in the case of work combinations: here, different works are merged into a new whole. This creates a new overall work
F. No application to purely formal and technical changes
14 Section 1.a and the corresponding licence grant in Section 2.a.1.B refer to the right of adaptation. This protects the integrity of the work. Adaptations in the copyright sense are always only changes to the content that affect the copyright-protected intellectual and aesthetic content (expression) of the work . Purely formal changes, such as spelling corrections or updates to new spelling rules or even the "gendering" of texts, are not covered by this. Nor are purely technical changes, such as the reformatting of an image file. This is expressly regulated in the CC licence in Section 2.a.4 .
G. No application to independent new creations and when using public domain elements
15 If a newly created work is based solely on public domain elements of pre-existing works, it is not considered modified material.
16 The same applies to stylistic imitations or new creations that merely use the public domain teachings, ideas or insights of pre-existing works. The style of a graphic or piece of music is not protected by copyright and can be used freely, regardless of any CC licence. The didactic structure or outline of, for example, a textbook or training material is also not subject to copyright protection. Adopting such basic elements when creating new works does not infringe on the right to adapt existing works. Therefore, no modified material is created in this case.
17 Furthermore, newly created works that maintain a "sufficient distance from the work used" (Section 23 (1) sentence 2 UrhG) do not constitute a modification, but rather free use. Even if protectable elements are adopted, there is no adaptation if pre-existing works merely serve as inspiration for an independent new creation. For this, a "sufficient distance" must be maintained in the sense that the borrowed personal characteristics of the work used "fade" in view of the uniqueness of the new work.
H. No application to adaptations permitted by law – through limitation provisions
18 The provisions of the CC licence regarding modified material do not apply to adaptations that are permitted by law (see above and below in section 8). In general, the limitations provisions of the German Copyright Act (UrhG) do not permit adaptation of the material used. Rather, the prohibition of modification in Section 62 UrhG applies in principle.
19 However, this contains a number of exceptions. Section 62(4a) is likely to be of greatest significance in the present context. According to this, changes to the works used are permitted provided that use is made in accordance with Section 51a UrhG and the purpose of use requires it. The latter will generally apply: if works are made the subject of caricatures, parodies or pastiches, they must usually be altered for this purpose .
20 Uses in the context of caricatures, parodies or pastiches are permitted by law under Section 51a UrhG.
Creative Commons License
Open Access Kommentar, Commentary on Section 1.a. Modified Material is licensed under a Creative Commons Attribution 4.0 International License.
